Here's a thought experiment: Imagine a jury selection in a civil trial involving a traffic accident in which a motorcyclist rear ends a car with tinted black tail lights and ends up paralyzed for life. The motorcyclist is suing the company that manufactured the tinting product. There's a motorcyclist in the venire who is about to end up on the jury unless one party strikes him. Both sides have one peremptory strike left, which side should strike the motorcyclist? To make it more interesting, imagine you had $28 million to bet which side would strike the motorcyclist, which side would you bet on? What does conventional wisdom suggest? What does your gut tell you?
Most people would wager on the defense striking the motorcyclist – an understandable position. And the rationale would probably be something like this:
A motorcyclist as a juror will ____________.
1. Identify with a motorcyclist plaintiff.
2. Have experienced near misses with cars and trucks, and empathize with the plaintiff.
3. Possibly have had a motorcycle related injury or accident of his own and empathize with the plaintiff.
4. Know other motorcyclists who have been injured in accidents and sympathize with the plaintiff.
5. Be angry that a corporation would make a product that seems to make it harder to see brake lights.
6. Be a "rebel" and thus not likely pro-corporation.
7. Hold anti-corporate sentiments.
These were some of the thoughts I had as I consulted the defense team on a jury selection in a case with this very fact pattern. But my recommendation was to keep the motorcyclist, which we did. Why would I make this recommendation?
Similar is not the Same
There's a school of thought among some trial attorneys that a juror who shares similar characteristics with a plaintiff will likely side with the plaintiff. This can be true, but it should never be considered a given. The similarities in question could relate to immutable characteristics such as race or gender, it could be work related similarities, life experiences and it could even be situational experiences or activities that almost mirror those of the plaintiff (with the exception of the incident that gave rise to the law suit).
These variables are important to consider when deciding whether or not to strike a juror, but as always it's unwise to place too much emphasis on a single variable as a predictor when it comes to human behavior. Over the years I've seen many occasions in which jurors who seemed similar to the plaintiff didn't find for the plaintiff. So what do you do in jury selection when faced with the decision to strike or not strike a potential juror similar to the plaintiff? How do you know what a juror's characteristics will mean? How will the individual juror filter the evidence as a result of a particular experience he or she shares with the plaintiff? What impact will the jurors' similarities with the plaintiff have on his or her ultimate verdict?
Go Beneath the Surface
Too many times we (as human beings) are too quick to think we understand others based on one or two seemingly salient characteristics. We often fail to look deeper than the surface. When it comes to jury selection this is a mistake. Two potential jurors might have experienced the same thing or lived a similar experience and for one it was consequential for the other, inconsequential. For example, consider a scenario in which a potential juror who has worked around hazardous substances all his life is about to end up on a jury in a case where the plaintiff claims that workplace exposure to hazardous substances caused his illness. Should the plaintiff or defendant strike the juror? It depends. Why? Because there's a vast difference between a person who has been exposed to hazardous substances in the workplace and is not worried about his health, and a person with the same workplace exposures who's very worried about his health. One of these jurors is much more suited for a plaintiff strike and one is more suited for a defense strike.
When attempting to understand how any juror experience or variable might impact how they will evaluate your case, here are a few important things to consider:
- What attitudes has the juror developed as a result of the experience?
- How did the juror's behavior change as a result of the experience?
- How was the juror's life impacted by the experience?
- What conclusions has the juror drawn as a result of the experience?
- Is there a substantive difference between what the juror has experienced and what the plaintiff experienced?
The principle applies whether you are focused on one individual and his or her experience or a group of individuals who appear to share some characteristic in common with one another. Simply being aware of the experience or characteristic alone is not enough.
The best way to glean this "second layer"of information will depend on the situation. In some case is can be learned during voir dire (e.g., if you are trying to determine how a relevant experience has affected someone's world view). In other cases it could be uncovered in a focus group or mock trial (e.g. if you want to know how "motorcyclists" might react to the case facts). Additionally, there might be someone on your trial team with relevant experience that could prove insightful.
Let's return to the case of the motorcyclist as a potential juror. For more context, there was a difference between the type of motorcycle the plaintiff rode (a sports bike) and what the potential juror rode (a Harley-type cruiser). There was also quite an age difference between the two, the plaintiff being much younger than the potential juror.
Going into jury selection, we knew from two sources that these differences were significant. First, I happen to have known many motorcycle riders over the years and have heard first hand that many cruiser-type bikers think those who ride sports bikes are reckless (youth having something to do with it). Furthermore, some of the cruiser-type bikers I've known have had outright animosity toward sports bikers because of experiences they've had in which their safety had been threatened by the recklessness and aggression of sports bike "gangs."
The second source of information we had came from various mock jurors in the mock trial we conducted leading up to trial, who happened to be motorcycle riders. Through the course of deliberations and debriefings, we heard the same thing I had heard from my motorcycle friends: not all motorcyclists are the same. In fact, they can be quite different and even antagonistic toward one another depending on the type of bike they ride.
We further learned, and perhaps most importantly, that seasoned riders and those who've stuck with biking for many years understand on a deep level that the rider is most responsible for his or her own safety, and the rider must be alert to any and all danger out on the road. These folks understand that when it comes to motorcycles, there's no such thing as a small accident.
Since our potential juror rode a cruiser-type bike and had done so for a large part of his life, we had a good idea how he'd respond to the fact pattern in this case. We also knew he'd likely be a safety-conscious biker and would respond well to the theme that worked so well with our mock jurors: "eyes forward."
Armed with this information, we felt confident that the right decision in this particular circumstance was to not strike the motorcyclist. .
Interestingly, plaintiff's counsel thought we had inadvertently run out of strikes before striking the motorcyclist or simply made a grave error in judgement by keeping the motorcyclist, and he expressed that to us at the conclusion of jury selection.
By now it should be obvious that the end of the story is that the jury found in favor of the defendant - $0 damages (the demand was $28 million). As we spoke to the jurors after the verdict, we were extremely curious what the motorcyclist had to say. As it turned out, he was fully in support of the defendant, and very critical of the plaintiff. Why? Because the plaintiff was "being irresponsible" and caused his own injury by "not paying attention."
It's a great risk to rely on a single, seemingly important variable when attempting to predict a juror's propensities at trial. Sometimes that single variable defines the person, other times it's an insignificant component of a person's overall experience. As in the case of the motorcyclist juror, the "second layer" of information was much more important in determining his verdict propensities than the simple fact that he was a "motorcyclist." So next time you think you know what a juror will think based on one aspect of that person, think again.
"I was that fortunate lawyer that was working with Jeff Dougherty on this tough, tough case. If someone had told me before this case started that I would leave a motorcycle rider on a jury with a plaintiff motorcycle rider paralyzed in a wreak involving my clients product I would have had a good laugh.
But Jeff walked me through it so I could follow point to point how and WHY it made sense to leave the motorcycle rider on the jury. The great jury consultants know the rules as only they can determine when it is time to break those rules. Dougherty is one of those great jury consultants." - Steve Holden, Holden Litigation Dallas, Texas.
For more advice on how to improve jury selection, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
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